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Michael L. v. Saul

United States District Court, D. Maine

July 12, 2019

MICHAEL L., Plaintiff
ANDREW M. SAUL, Commissioner of Social Security, [1] Defendant


          John H. Rich III United States Magistrate Judge.

         This Social Security Disability (“SSD”) and Supplemental Security Income (“SSI”) appeal raises the question of whether the administrative law judge (“ALJ”) supportably found the plaintiff capable of performing work existing in significant numbers in the national economy. The plaintiff seeks remand on the bases that the ALJ erred in determining both his physical and mental residual functional capacity (“RFC”) and in evaluating his subjective statements. See Plaintiff's Itemized Statement of Errors (“Statement of Errors”) (ECF No. 13) at 3-16. I find no reversible error and, accordingly, recommend that the court affirm the commissioner's decision.

         Pursuant to the commissioner's sequential evaluation process, 20 C.F.R. §§ 404.1520, 416.920; Goodermote v. Sec'y of Health & Human Servs., 690 F.2d 5, 6 (1st Cir. 1982), the ALJ found, in relevant part, that the plaintiff met the insured status requirements of the Social Security Act through September 30, 2013, Finding 1, Record at 40; that he had the severe impairments of personality disorder, affective disorder, anxiety disorder, drug and alcohol substance abuse disorders, and right hip avascular necrosis status post surgery, Finding 3, id.; that he had the RFC to perform medium work, as defined in 20 C.F.R. §§ 404.1567(c) and 416.967(c), except that he could frequently kneel, crouch, crawl, and climb ladders, scaffolds, and ropes, was able to perform simple, routine tasks, work in sight of coworkers but do no teamwork or collaborative work, adapt to simple changes in the work routine, and could not work with the general public, Finding 5, id. at 44; that, considering his age (43 years old, defined as a younger individual, on his alleged disability onset date, April 3, 2012), education (at least high school), work experience (transferability of skills immaterial), and RFC, there were jobs existing in significant numbers in the national economy that he could perform, Findings 7-10, id. at 53; and that he, therefore, had not been disabled from April 3, 2012, his alleged onset date of disability, through the date of the decision, June 7, 2017, Finding 11, id. at 54-55. The Appeals Council declined to review the decision, id. at 1-3, making the decision the final determination of the commissioner, 20 C.F.R. §§ 404.981, 416.1481; Dupuis v. Sec'y of Health & Human Servs., 869 F.2d 622, 623 (1st Cir. 1989).

         The standard of review of the commissioner's decision is whether the determination made is supported by substantial evidence. 42 U.S.C. §§ 405(g), 1383(c)(3); Manso-Pizarro v. Sec'y of Health & Human Servs., 76 F.3d 15, 16 (1st Cir. 1996). In other words, the determination must be supported by such relevant evidence as a reasonable mind might accept as adequate to support the conclusion drawn. Richardson v. Perales, 402 U.S. 389, 401 (1971); Rodriguez v. Sec'y of Health & Human Servs., 647 F.2d 218, 222 (1st Cir. 1981).

         The ALJ reached Step 5 of the sequential evaluation process, at which stage the burden of proof shifts to the commissioner to show that a claimant can perform work other than his past relevant work. 20 C.F.R. §§ 404.1520(g), 416.920(g); Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987); Goodermote, 690 F.2d at 7. The record must contain substantial evidence in support of the commissioner's findings regarding the plaintiff's RFC to perform such other work. Rosado v. Sec'y of Health & Human Servs., 807 F.2d 292, 294 (1st Cir. 1986).

         I. Discussion

         A. Challenge to Physical RFC Determination

         The plaintiff contends that, in determining his physical RFC, the ALJ erred in weighing the expert opinions of record and in omitting to include a need for a cane or other assistive device. See Statement of Errors at 5-11. I find no reversible error.

         1. Weighing of Expert Opinions

         a. Background

         The record contains the opinions of five experts addressing the impact of the plaintiff's right hip avascular necrosis, for which he underwent a total hip replacement in September 2015. From oldest to most recent, those opinions are as follows:

1. On March 20, 2015, treating physician James A. Katz, M.D., wrote that the plaintiff had avascular necrosis of his right hip and could not work for approximately six months, noting, “We are getting orthopedic consult.” Record at 546.
2. On April 23, 2015, for purposes of a MaineCare determination, consultant Charles Burden, M.D., indicated that the plaintiff's impairment met Listing 1.02 of the so-called “Listings, ” Appendix 1 to 20 C.F.R. Part 404, Subpart P. See Record at 397-98. Dr. Burden recommended that the plaintiff's status be reviewed in one year. See id. at 397. He summarized two medical records, a February 2015 record in which the plaintiff “alleg[ed] back pain and weakness but [had] normal strength and gait on PE [physical examination, ]” and a March 2015 record in which the plaintiff was noted to have “LBP [low back pain] with radiation down RLE [right lower extremity], reflexes normal, able to walk, MRI with AVN [avascular necrosis] and mircrofracture R [right] hip, HNP [herniated nucleus pulposus] without definite impingement.” Id. at 398.
3. On August 17, 2015, on initial review, agency nonexamining consultant Donald Trumbull, M.D., stated that there was insufficient evidence to assess the severity of the plaintiff's physical allegations as of his date last insured for SSD benefits (“DLI”), September 30, 2013, but that, for the period from March 18, 2015, through March 17, 2016, the plaintiff could occasionally lift and/or carry 50 pounds, frequently lift and/or carry 25 pounds, stand and/or walk with normal breaks for about six hours in an eight-hour workday, sit for about six hours in an eight-hour workday, push and/or pull within the capacities shown for lifting and/or carrying, and frequently climb ladders, ropes, or scaffolds, kneel, crouch, and crawl. See Record at 135-37. He noted no other physical limitations. See id. He explained that the plaintiff's right hip impairment was “severe now” with “planned surgery and upcoming rehab[, ]” and that, “in the absence of severe co-morbidities” and with “full attention” to his treating source's “advice/care plan including smoking cessation, ” it was “reasonable to anticipate this RFC by 12[] mos.” Id. at 136.[3]
4. On March 1, 2016, on reconsideration, agency nonexamining consultant Archibald Green, D.O., concurred that there was insufficient evidence to assess the severity of the plaintiff's physical allegations for the period as of his DLI, see id. at 169, and that the physical RFC assessed by Dr. Trumbull remained appropriate, with “[n]o change” at the reconsideration stage of review, see id. at 183-84.
5. On June 27, 2016, treating physician Oren Gersten, M.D., indicated that the plaintiff could stand and/or walk for less than two hours in an eight-hour workday, never climb, and occasionally balance, kneel, crouch, crawl, and stoop. See id. at 1092-93. With respect to the assessed sitting/walking limitation, he wrote that walking and standing were limited to less than one hour a day “due to right hip and back pain[, ]” that the plaintiff's “recovery [was] complicated by atypical post-operative pain[, ]” that the plaintiff could not “walk for more than 100 yards at a time despite physical therapy and integrative medicine[, ]” and that he did “not expect his function to improve beyond its current capacity[.]” Id. With respect to the assessed postural limitations, he explained that performance of those activities was “limited by pain[, ]” that “[c]limbing would be dangerous given instability[, ]” and that balancing, kneeling, crouching, crawling, and stooping required “movement of [the] right hip[, ] which he is not able to do without pain[.]” Id. at 1093. The form that Dr. Gersten completed indicated that this was his professional opinion as to the plaintiff's physical limitations from April 3, 2012, to the present. See id. at 1095.

         The ALJ gave “great weight” to the opinions of Drs. Trumbull and Green and “very little weight” to those of Drs. Katz, Burden, and Gersten. Id. at 50-51.

         b. Analysis

         The plaintiff challenges the ALJ's reliance on the Trumbull and Green opinions on the bases that neither offered any opinion for the period prior to March 2016, both provided opinions only for the period from March 2015 to March 2016, and both merely projected that, following surgery and rehabilitation, he would be able to perform medium work. See Statement of Errors at 3-5. He adds that, although Dr. Green's opinion postdated his surgery, Dr. Green “apparently did not review the surgical notes, instead talking in terms of the ‘planned surgery and upcoming rehab.'” Id. at 3 (quoting Record at 184). He argues that remand is warranted because in this case, as in Christopher H. v. Berryhill, No. 1:17-cv-00246-JAW, 2018 WL 3539439 (D. Me. July 23, 2018) (rec. dec., aff'd Sept. 10, 2018), the ALJ made no finding as to his ability pre- and post-surgery, ignoring the temporal limitations of the Trumbull and Green opinions. See id. at 4-5. He adds that, because Drs. Trumbull and Green did not anticipate, in projecting his recovery from surgery, that he would develop chronic post-operative pain, their opinions cannot stand as substantial evidence of his condition throughout the relevant period. See id. at 9 (arguing that the Trumbull and Green opinions “would necessarily have been altered had [they] had the opportunity to see the later records”).

         This case is materially distinguishable from Christopher H., in which the ALJ rejected all expert opinions of record bearing on the question of a claimant's ability to stand and walk on the basis that they predated what he described as a “‘drastic' or ‘great' improvement” following the claimant's knee surgery. Christopher H., 2018 WL 3539439, at *4. In that context, the court noted, “to focus on an improvement post-surgery necessarily begs the question of the plaintiff's condition pre-surgery, and the ALJ failed to address the latter.” Id. The court held that remand was required when “the ALJ's finding as to the plaintiff's ability to stand [wa]s unsupported by either expert medical opinion or the ...

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